India's transgender law is no help to its lesbian, gay and bisexual communities

We now have contradictory laws on gender and sexuality in India – with homosexuals now seemingly singled out as a threat

'In Hinduism, the Hijra community (eunuchs) are generally poor, but LGB Indians stem from middle- and upper-class society, and are therefore more threatening to India's value system.' Photograph: Dibyangshu Sarkar/AFP/Getty Images

Thursday 17 April 2014 05.00 EDT
First published on Thursday 17 April 2014 05.00 EDT

In a landmark judgment by India's supreme court on Tuesday, transgender people were granted the status of a "third gender" category, recognising them as a socially and economically disadvantaged class. "It is the right of every human being to choose their gender," the detailed judgment stated, thus granting rights to those who self-identify as neither male nor female. The court also directed the central and state governments to take the necessary steps to allow for equal status by ensuring adequate healthcare, education and employment as well as separate public toilets and numerous other safeguards against discrimination. All identity documents such as birth certificates, passports and driver's licences will now have a third gender box. The ruling stresses a number of times how much the transgender community has suffered historical abuse and discrimination.

While the ruling is in line with the tune of the Indian constitution, the verdict does not apply to sexuality, leaving India's lesbian, gay and bisexual communities in a state of flux. In fact, it contradicts a judgment made in December, by a different bench of the supreme court, which upheld the controversial section 377 of the Indian penal code that criminalised "sex against the order of nature", which is interpreted as gay sex. Only the ruling Congress party was quick off the mark to question the court ruling.

The transgender judgment quotes from several testimonies, illustrating the suffering of transgender persons and rightly acknowledging the role that section 377 played in discriminating against them. It is well accepted in the west that just as gender identity is integral to a person's self, dignity and freedom, so is a person's sexuality. The result is a constitutional dilemma – a colonial-era law is being interpreted in a contradictory manner by the highest court in India. Yet uniquely, both rulings fit in with India's super-conservative extended family-structured value system which is adhered to throughout the nation as well as the Hindu majority's religious beliefs.

In Hinduism, the Hijra community (eunuchs) – neither born male nor female, but self-identified as female – are historically believed to have the power to grant wishes and cast spells, and are often present at weddings and births. A transgender presence within Hindu psyche stems back to the essential Hindu epic text, the Mahabharata, where the male Shikhandi (but born the female Shikhandini) was vital in securing the Pandavas's necessary victory over the Kaurava in the great war of Kurukshetra.

While the Hijra are part of Indian society, they are still considered outsiders, being poor and generally working class. This makes it more acceptable for them to be ignored, thus preventing the judgment from being truly progressive. However, lesbian, gay and bisexual Indians also stem from middle- and upper-class society, and are therefore more threatening to the conservative structure and value system of society not only in India but where Indians have settled worldwide. Only last week a British-Asian man was imprisoned for murdering his Indian-born wife whom he married with the wish to unite his homosexuality and the value system of his community.

Somehow, in the extended family system practised throughout India, gayness can be easily hidden or accepted. Marriage is often very much about duty, responsibility and honour, and outside these boundaries much is acceptable and ignored. Slowly the country is changing, however this new ruling questions the very essence of Indian society, family structure, form, and most importantly, family name and blood, as well as respect within society.

At the time of an election where the conservative, pro-Hindu BJP party, led by Narendra Modi is a strong contender to be elected prime minister, the two conflicting judgments made by the supreme court favouring transgender people against increasingly visible LGB people, seems to sit well with India's new future. Yet still we must remain hopeful.